The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1887-02-18

repeated offences are not the object
which the legislature had in view in
making the statute;- but Singly, to
punish j man for exercising his or
binary trade and calling OF q Sunday.
Upon this construction, the Justice
had no Jurisdiction whatever in resp 2ct
of the three last convictions. HOW,
then, can there be a doubt, but thar
the plaintiff might take this objection
atthe tlial?" AS to justifyiDg the levy
under the last three warrants, Lord
Mansfield said: "But what could the
| Justification have been in this case, If
any had been attempted to be set up?
| It could only have been this: That be-
cause the plaintiff had been convicted
of one offence on that day, therefore
| the justice had convicted him IN three
other offenSeS for the same act. BY
law that is no Justification; 1t IS llle-
gal on the face OF it; and, therefore, as
was very rightly admitted by the coun-
sci for the defendant, in the argument,
| If put upon the record by way vi plea,
would have been bad, and on demur-'
rer must have been so adiudged. Most
clearly, then, it was open to the plain
| tiff, upon the general issue, 70 take ad-
vantage of it at the trial. The ques-
ton does not turn upon nicetles upon
a computation how many hours dis
tant the several bakiDgs happened; or
| upon the fact of which conviction was
prior IN point of time; or that for nm
Lcertainty in that respect they should
all four be held bad. But it goes upon
the ground that the offence itself can
| be committed only once IN the same
day" .. --..-
In the case at bar the statute pro-
yideS, that if any male person shall
| thereafter cohabit with more than one
Woman, lie shall, on conviction, be
| punished thus ana so. The judgment
| in the case, taken in connection
with the other proceedings in the re.
cord and the statute, shows, within the
principle of CTeppS V. Durden, that
there was but one entire offence,
whether longer or shorter in point OF
! duration, between the earliest day laid
| in any Indictment and the latest day
! laid IN any. There can be but one
! offence between such earliest day and
the end of the continuous time en-
braced by all of the indictments. Not
only had the Court which tried them
no Jurisdiction 10 infict punishment
in respect of more than one of the con-
victions, but, as the want of jarisdic-
ton appears on the face OF the judg-'
| l.,
hQ5eGS COrpRS, when the sentence on
more than one of the convictions is
sought to be enforced. If such an OBJ
lection could be taken in Crops V.
burden, in collateral action for dam
ages, it can be taken on hG6eGS corpus
to release the party from imprlsOn-
ment under the illegal judgment. These
considerations distinguish the case
from that of E'r pGrte BlgelOlC, (ubi
supra, and bring it within the principle
of such cases as EI pQrte Miligdn,
| a Wall, ., 1879 En- pdrte LANCE, Us
Wall, 163. 17S;) and Er parte wilson,
Ola L. s Al. -
A distinction is laid down in adjudged
cases and in text writer's between an
offence continuous in its character,
/ like the one at bar, and case where
the statute is aimed at an offence that
can be committed unO ictu. The sub
ject is discussed in l WhdrtOR'S Grim
| NAL Lalu, 9th ed, IS y, 931, and the
cases on the subject are cited,
The principle which governs the
present case has been recognized and
approved IN many cases in the United Unite
States; WaShbuTn V. McInrOy (lS1O,)
1Sl5,) u Johns 122; Tiffany V. briggs,
! QS16,) 10 Johns, 253; State V. C0m'rs.
! isis , Nluphey, 87l; United States V.
I nc C0rmick, 1S30,) 4 Crdnch G. g.,
104: State V. Matt, (1S56,) 2S ", 59S;
State V. Lindley. (1S60,) IA md, 430;
.St,.rgis V. SpQF0rd, 1S71,) 40 ". z,
446; Fisher V. ". Y. C.. & II. IL r. r.
| Co... ISTI,) 46 " Y, GA; State V.
EggIeSht, (1S75,) Il IOlCd, ia; United
! StGteS Y. Nelg York Guaranty Il IN
dempity co QSI5,) 5 Ben, 269; United
States Y. Erie Railasdy Co., (1SI1) 8
!. Ben, g., 6S.
The case of Comm. C0nnorS, GIG
Mass, 49, gives no support TO the
view that grand jury may divide a
single continuous offence, running
Though a past period of time, into
such parts as it may please, aud call
each part a separate onence. On the
contrary, in Comm. V. Robinson, (l26
MaSS., 49, it is SAID that the offence
of keeping 4 tenement tor the illegal
sale of Intoxicating liquors on a DAY
named, and on divers. other days and
times between that day and a SUISSE
auent day, is but one offence, even
though the tenement is kept during
every hour of the time between those
two days, such offence being con-
tlnuOus in its character.
On the whole case we are unani-
mously Ct opinion that the order and
Judgment of the District Court for the
! Third Judicial District Of Utah Terri
tory must be reversed and the case be
remanded to that Court, with dlrec-
! ton 10 grant the writ of hdbeds corpus
PRAYED for, and to take such proceed
| ingS thereon as may be in conformity
with law and not inconsistent with the
| opinion of this Court.
True copy.
| Attest: JAMES H. MCKINNEY,
Clerk Supreme Court U. s.